Sweaty Palms?

Posts Tagged: liability

Where there are fitness, recreation, and sport activities, there are injuries! Unfortunately, where there are injuries, there are lawsuits! Providers of these activities must take care to manage risk in two ways. First, they should take steps to reduce the likelihood of injury as much as possible. Secondly, they should do everything possible to protect themselves and their business entity from the risks of financial loss. A major financial risk is that of lawsuits by parties injured while participating in fitness, recreation, or sport activities.

Injuries in fitness, recreation, and sport activities arise from three sources. They result from either 1) accidents due to the inherent risks of the activity, 2) negligence (errors or mistakes) of the provider, co-participants, or others, or 3) extreme actions such as gross negligence or reckless actions. Generally, the provider is not liable for injuries resulting from the inherent risks of the activity, however, they are held liable for injuries resulting from their own negligence. A waiver can protect the provider from liability for injuries caused by provider negligence. A waiver generally does not protect the provider from liability for extreme actions.

Do you sometimes wonder why you are documenting your facility inspections and creating all of those incident reports? Someday, when your organization is embroiled in litigation and you are faced with having your deposition taken, you may appreciate the written record that you so carefully made. When your deposition is taken, you may have the benefit of having an attorney that represents your organization meet with you in advance and possibly represent you during your deposition. However, that might not be the case. Witnesses to incidences do not necessarily have counsel and oftentimes have their depositions taken with barely an understanding of what it is all about. The following information will hopefully orient you to the deposition process so that if you find yourself experiencing the pleasure of being grilled by a shark wearing a lawyer’s suit, you will know what to expect.

Editors Note: In the US, this is referred to as ‘Premises Liability’. While there may be differences from state to state, the principles are essentially the same.

Over the next three issues of the Newsletter, Occupiers’ Liability will be explored, with each part focusing on the three categories of ‘visitor’ to a property — invitee; licencee and trespasser.

Occupiers’ liability was initially developed in the common law. Over time (several hundred years), judges began to develop the duties and obligations owed by the occupier of property to those who could be expected to enter and use the property. The occupier is the person or entity in control of the property, and therefore, includes a renter and lessee as well as owner. Occupation could be for as little as one day or evening, such as renting a hall for an event or a field for a game. Property or ‘premises’ can be mean land, structures, water, ships/vessels, trailers or other portable structures and vehicles not in operation.

Editors Note: In the US, this is referred to as ‘Premises Liability’. While there may be differences from state to state, the principles are essentially the same.

Part I of the series discussed invitees, those who are permitted on an occupied land by the occupier, usually for the benefit of the occupier.

The “licencee” is identified as one who, for his or her own purpose or interest, goes onto premises occupied by another with the occupier’s consent or sufferance. It is important to note that consent can be implied as well as express.

Editors Note: In the US, this is referred to as ‘Premises Liability’. While there may be differences from state to state, the principles are essentially the same.

Parts I & II of the series on Occupiers’ Liability has explored the issues surrounding an ‘occupier’ and ‘premises’, and who is considered to be an invitee and a licencee, should injury occur while they on ‘occupied’ premises. Keep in mind that an occupier (anyone in control of premises) must use such care as may be required to protect invitees and/or licencees while they are on the premises.